Opinion
No. 2-036 / 01-1124.
Filed July 3, 2002.
Appeal from the Iowa District Court for Johnson County, DOUGLAS RUSSELL, Judge.
Cary Randall appeals the portion of the parties' dissolution decree granting physical care of their son, Nolan, to Robert Randall. AFFIRMED.
Stephen Greenleaf of Lynch, Greenleaf Michael, Iowa City, for appellant.
Constance Stannard of Johnston Nathanson, P.L.C. Iowa City, for appellee.
Considered by HUITINK, P.J., and VOGEL and EISENHAUER, JJ.
Cary and Robert Randall were married on August 10, 1990. They had one child during the marriage, Nolan, who was born on March 5, 1996. On October 29, 1998, Robert filed a petition for dissolution of the marriage and the court subsequently entered a temporary order granting joint custody and joint physical care of Nolan pending trial. Following a trial, the court, among other things, granted the parties joint legal custody of Nolan and granted Robert his physical care, subject to liberal visitation by Cary. Cary appeals this order, contesting the physical care arrangement and the collateral support issues.
"Because child custody and support are matters triable in equity, our review is de novo." In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997). We give weight to the trial court's fact findings, particularly when considering the credibility of witnesses, but we are not bound by them. In re Marriage of Hornung, 480 N.W.2d 91, 93 (Iowa Ct.App. 1991).
On our de novo review of the record, we affirm the district court's order granting Robert physical care of Nolan. The record demonstrates support for the district court's observation that both parents clearly love Nolan and have the ability to provide for his physical needs. However, several factors weigh in favor of Robert in reviewing the physical care determination.
Robert's employment, financial, and housing situation are more stable than Cary's. The record supports the district court's assessment that Robert has a more consistent, mature, and long-range outlook for Nolan's future. In addition, Robert is clearly the parent better able to foster a relationship between Nolan and Cary, as well as both extended families. See In re Marriage of Collingwood, 460 N.W.2d 486, 488 (Iowa Ct.App. 1990) (recognizing the need for a child to maintain the "loving care and the warmth of an extended family"). Cary appears to have little communication with some members of her immediate family; in fact, her brother and father testified in favor of granting Robert physical care of Nolan. See In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984) (discussing importance of one parent supporting the child's maintenance of a meaningful relationship with the other parent).
We also reject Cary's assertion the court failed to give adequate consideration to the opinion of a court-appointed expert. Pediatric psychologist Dr. Hartson, who was appointed by the court on the parties' request, filed a report which cataloged the respective assets and liabilities of Cary and Robert as parents. He concluded that both are clearly adequate parents, but that Robert possessed more liabilities than Cary. However, Dr. Hartson refused to offer any specific custody recommendation and was unable to state who would be the better parent. We first find it important that Dr. Hartson did not specifically recommend Cary be granted Nolan's physical care. Further, the court is not required to accept the conclusions or recommendations of any custody evaluation. See e.g. Nicolou v. Clements, 516 N.W.2d 905, 909 (Iowa Ct.App. 1994) (noting neither the district court nor an appellate court is bound by an expert's conclusions).
Viewing the record as a whole, we conclude the district court carefully weighed the evidence before it and established a suitable care arrangement that is in Nolan's best interests. In affirming the district court's findings, we give considerable weight to the sound judgment of the trial judge who had the benefit of hearing and observing the parties and other witnesses first hand. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).
Robert requests an award of appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Gilliam, 525 N.W.2d 436, 439 (Iowa Ct.App. 1994). In consideration of the needs of the parties and their ability to pay, we award no attorney fees.
AFFIRMED.